The opinion that “effectively developing a QDRO requires providing legal advice...” is simply untrue. I’ve effectively prepared QDROs for years without providing any legal advice, and I’m quite certain my fellow-CLDPs could and would say the same. I explain the legal process and provide information regarding general legal principles, just as I’m permitted to do – no more and no less. Should the consumer have questions/concerns that I’m unable to provide an answer to, or is seeking legal advice, I refer them to an attorney or a firm that specializes in QDROs.
While preparing QDROs/DROs is a relatively minor aspect of the service I provide, I have yet to encounter an issue with the efficacy of the QDROs that I’ve prepared. As stated in Mr. Ron Steward’s comment, in the vast majority of instances, the use of model (or sample) QDROs developed by the retirement plan itself are used to draft the document, with only slight variances. For the non-format information that’s needed, it’s provided either by the ruling contained in the Decree and/or related court orders, or by the participant or alternate payee. At no time is advice given in the completion of the QDRO so again, what exactly is the LDP being accused of advising the consumer on, precisely? I don’t typically read through all of the complaints against LDP and the subsequent outcomes, but from what I’ve seen, there’s no history of numerous grievances from consumers that would bolster the workgroup’s recommendation to implement the proposed restriction.
The LDP program was created in part to allow the public a chance at access to the court system while avoiding the high costs of attorneys’ fees. It is something that has been highly beneficial for the people of Arizona for over 20 years. If this restriction is approved, I feel the change to the rule will be a precedent by which the program can and will be manipulated by “work groups” made up of attorneys and legal paraprofessionals who stand to gain financially if this rule change is passed. Just as with a lot of court documents, the QDRO is a type of LDP service that the program was designed for in the first place back in 2003. If a consumer of modest means is prohibited from seeking the cost-effective assistance of a LDP, and cannot afford the high expense of an attorney or even a legal paraprofessional, what is the litigant’s choice then... muddle through on her own and hope that she doesn’t mess something up and be worse off than she already was? That seems like just the scenario that the LDP program was created to avoid. Therefore, the proposed amendment to Section 7-208 goes against the very fundamental basis for the LDP program and, therefore, is unjustified and should be rejected.

Respectfully,
JoJo Aguilar,

I would like to clarify that Legal Paraprofessionals would gain nothing by limiting CLDP's from preparing QDRO's. LP's are not allowed to prepare QDRO. It's one of our licensing restrictions. If you read my response prior to yours, you will hopefully see that I support CLDP's continuing to prepare QDRO's, and my thoughts on why this attempt to limit CLDP's is occurring.

I’m opposed to the proposed change to ACJA 7-208 to prohibit LDPs from preparing “Qualified Domestic Relations Order (QDRO) or supplemental orders dividing retirement assets.”

I. PURPOSE OF THE LEGAL DOCUMENT PREPARER PROGRAM

It’s important to review the purpose of the Legal Document Preparer Program:
“the need to protect the public from possible harm caused by nonlawyers providing legal services must be balanced against the public's need for access to legal services.” (ACJA 7-208 (C))

How will this proposed change improve the public’s access to legal services?

The stated rationale for the change is that “effectively developing a QDRO requires providing legal advice.” There is nothing in the rationale that suggests the change will improve the public’s access to legal services. On the contrary, it will make it more difficult for the general public to access legal services when they cannot afford to have a QDRO or Domestic Relations Order (DRO) prepared due to the high cost.

I’ve prepared many QDROs and DROs in my 15+ years of service as a Legal Document Preparer. On one occasion I was contacted by a woman who was a 3-hour drive from my office. She could find no one to prepare the QDRO at a price that she could afford. The attorney who did the divorce years before, did not prepare the QDRO. This left her at risk of her ex-husband (plan participant) dying and then not being able to divide the retirement asset due to his death. We helped her through the process and the QDRO was successfully entered protecting her interest in the retirement account.

I see nothing in the rationale behind the proposed change to 7-208 that indicates there has been any harm done to the public by LDPs preparing QDROs and DROs. If the LDP is competent, there should be no restriction.

II. PREPARING A QDRO OR DRO DOES NOT REQUIRE LEGAL ADVICE

The rationale that a “QDRO requires legal advice” has not been the case in my years of practice. I have never provided any legal advice while preparing Qualified Domestic Relations Orders or Domestic Relations Orders, nor has it been required. If the situation arose where legal advice was required for any document, not just QDROs or DROs., we would refer to a competent attorney.

The procedure generally involves contacting the Plan Administrator to see if they have model orders. This may trigger a hold on the retirement account, so we give the parties that information. Fidelity has a very simple tool that will generate a complete order. Usually, our clients divorce by consent where both parties agree to the division of the retirement asset. Sometimes we prepare the QDRO for an already divorced couple who simply need the Order prepared in a manner consistent with the Decree. No legal advice is required because they are telling us what they want done.

On occasion, we have included the QDRO language in the Decree and included the relevant portions of Internal Revenue Code (IRC) Section 414(p). This allows the Decree to be used as the QDRO. None of this requires legal advice because the requirements are generally set by statute and the Plan Administrator.

III. THE PLAIN LANGUAGE OF 7-208 DOES NOT RESTRICT AN LDP FROM PREPARING A QDRO OR DRO

The current language of 7-208 states,
“A certified legal document preparer is authorized to:
a. Prepare or provide legal documents, without the supervision of an attorney, for a person or entity in any legal matter when that person or entity is not represented by an attorney.” Emphasis added.
I’m a little surprised at the conclusion of the workgroup: “In their discussions the workgroups identified that no permission to write or develop QDROs existed for Legal Document Preparers.” (emphasis added) The plain language of “any legal matter” certainly includes QDROs and does not require additional permission. The word “any” is all inclusive.

IV. REMOVING THE RESTRICTION ON LPs PREPARING QDROs WOULD IMPROVE THE PUBLIC’S ACCESS TO LEGAL SERVICES

Sadly, the workgroup did not include any LDPs. Logically, it would makes sense to have input from the very ones you are trying to restrict who have been actually doing the work for years without issue. Not only were LDPs not included, LDPs were not even notified of the proposed change. But for one of the LDPs keeping an eye on proposed changes, we would have little notice of proposed changes and that seems a violation of due process.

If the real issue here is that LPs are restricted, and therefore, LDPs should be restricted, perhaps you should allow LPs to prepare QDROs, also. That would improve the public’s access to the legal services which is the whole point of both programs.

This proposed change will do nothing to improve the public’s access to legal services. For this reason, and those enumerated above, I oppose the proposed change.

Respectfully,

Arlene Rheinfelder, AZCLDP 81216
Prescott Tax & Paralegal LLC 81468
141 S. McCormick St., Suite 206
Prescott, AZ 86303
(928) 778-3113

Once again, a rule change has been proposed to degrade the CLDP program. The proposal presents four major problems. First, CLDP’s are again omitted from the “working groups”. As the stakeholder most significantly impacted, CLDP’s should have been at least minimally represented in those groups. Second, the assumption that preparation of a Qualified Domestic Relations Order requires legal advice is factually false and inconsistent with the present practices of most qualified and government retirement plans. Third, those proposing the rule change have failed to show any public harm caused by CLDP’s preparing QDRO’s. Thousands of Arizona residents have benefited from the affordable services offered by CLDP’s and the preparation of QDRO’s. Lastly, the proposed change degrades the overall goal of the CLDP program to provide greater access to legal assistance to those who could not ordinarily afford to hire an attorney. Similar attempts have been made in the past to degrade the program for the benefit of high-cost attorneys.

Mr. McCall identified that the two workgroups that devised this rule addendum, contained only attorneys and legal paraprofessionals. The groups contained no CLDP’s and no members of the public, the two groups that are most affected (and harmed) by the proposed change. To purposely exclude these groups, only serves to ensure the change is unchallenged, to reduce competition in the legal field, and ensure an additional revenue source for attorneys. Those proposing this rule change and past rule changes, treat the overwhelmingly successful CLDP program with utter disdain. Input is never sought from CLDP’s nor the predominant CLDP professional association, the Arizona Association of Independent Paralegals. Instead, because CLDP’s are not attorneys, they ignore their concerns and input, but at the same time, the courts rely on CLDP’s to help members of the public who may otherwise have no access to legal assistance. The change would drastically increase the cost of the preparation of QDRO’s and associated documents and impact the earning capacity of CLDP’s who have successfully prepared these documents for more than twenty years.

The statement that the preparation of the QDRO’s requires legal advice is preposterous. Most plans not only provide for use of, but require the plan’s model QDRO language. Most plans’ models, especially government retirement plans, are essentially “fill in the blank” forms. The questions for which, have generally been answered by the divorce decree. In fact, many major plan administrators charge large fees for deviations from their model language. For example, the Fidelity QDRO Center may charge fees up to $1500 in addition to their processing fees, if a QDRO deviates from their model language, further affirming that the justification for the rule change is nonexistent. Most government plans, while not subject to ERISA, still require court orders to divide. Most government plans, including those administered by Arizona State Retirement System and the Public Safety Retirement System, prohibit most deviations from their models. The proposed rule change would require Arizonans to prepare the documents on their own, with little or no knowledge of the court process, or pay an expensive attorney to prepare it for them, which many will not be able to afford. ACJA 7-208 allows CLDP’s to prepare any legal documents such as wills, trusts, divorces, deeds, contracts, civil lawsuits, appellate court documents, substantive motions, and any other legal document the CLDP is qualified to prepare, all of which are far more legally complex than a QDRO. To say that CLDP’s can prepare those documents within the scope of 7-208 but not QDRO’s, is simply false. The singling out of QDRO’S is completely illogical and inconsistent with the spirit and explicit purpose of the CLDP program; that is to provide greater access to justice. A license to practice law does not mean an attorney is qualified to prepare a QDRO. Like a CLDP, an attorney will need to seek additional knowledge and training to be qualified and to ethically prepare a QDRO. The same knowledge and training that a CLDP will seek or possess.

The working groups showed no evidence of harm to the public from CLDP’s preparing QDRO’s, a practice that exceeds more than 20 years.

Finally, the purpose of the court instituting the CLDP program was to provide greater access to affordable legal assistance while protecting the public from harm. This proposed rule change accomplishes exactly the opposite. Arizonans will be required to engage expensive legal services for a service that should not require it. Many Arizonans will forego the expense and try to navigate the process themselves which only serve to bog down the court system because of inexperienced parties trying to navigate the court process for the first time. The problem that is easily solved by discarding this ridiculous proposal and continuing with an overwhelmingly successful program that has been in place for over 20 years.

As technology evolves, the public is going to more likely turn away from expensive legal providers in favor of preparing their own legal documents, which will likely result in a slower legal system and inaccurate legal information and procedural knowledge. The CLDP program, as it stands, gives the public the ability to seek affordable, competent assistance in navigating a complicated legal system.


Rob Merrill
Legal Solutions
Certified Legal Document Preparers LLC

What harm has been demonstrated to the public by a Certified Legal Document Preparer (CLDP), more specifically, regarding Qualified Domestic Relations Order (QDRO) document preparation that caused a focus group to heavily weigh in on the standard practices of the Arizona Supreme Court, who since 2003, adopted the rules governing Certified Legal Document Preparers through the Arizona Code of Judicial Administration (ACJA § 7-208)?

If applicable, was the certificate holder found accountable and disciplined according to the code for harming the public, specifically regarding Qualified Domestic Relations Order (QDRO) document preparation before the Board of Legal Document Preparers as defined under § 7-208 (D) Administration?

These governing rules under ACJA § 7-208 in the certification process and administrative procedures were established to protect the public, while providing needed public resources to obtain legal information and document preparation without attorney supervision, for individuals who cannot otherwise afford an attorney.

The focus group states in their opinion that a Qualified Domestic Relations Order (QDRO) requires legal advice to write and prepare.

However, my opinion differs. For each time I prepare a QDRO for a client, it requires me to communicate with the QDRO plan administrator of the financial institution holding community assets to obtain their specific plan model for QDRO preparation. The ‘document writing’ is essentially prepared by the financial institution. Do QDRO model plans differ from institution to institution? Yes. However, it is simply a matter of carefully following the instructions provided by the plan administrator and identifying your client within their model structure [i.e., client names, addresses, and necessary information outlined in the signed divorce decree, along with client preferences, as guided by the client.] Although preparing a QDRO can be administratively labor-intensive and lengthy, it is not outside the scope, skill, and ability of a CLDP.

The proposal acknowledges ACJA § 7-208 (A-E) to be held up with no need for changes.

Therefore, under ACJA § 7-208 (A), the definition for a Legal Document Preparer as listed below must be integrally upheld throughout said judicial code:

“Legal document preparer” means an individual or business entity certified pursuant to this section to prepare or provide legal documents, without the supervision of an attorney, for an entity or a member of the public who is engaging in self representation in any legal matter. An individual or business entity whose assistance consists merely of secretarial or receptionist services is not a legal document preparer.

The proposal intentionally or unintentionally dangerously compromises the integrity and purpose of the role of a Certified Legal Document Preparer two-fold:

1. CLDPs have the authority to prepare legal documents in any legal matter.

This proposal wants to limit CLDP's ability to prepare legal documents for the general public. Today, it is a simple QDRO. What will it be tomorrow? How does this help the public?

2. CLDPs have the authority to prepare legal documents without attorney supervision for a person or entity in any legal matter when not represented by an attorney.

This proposal crosses out the essential characteristic that defines the purpose of a certified legal document preparer, which is to prepare legal documents without the supervision of an attorney.

Yes, the definition of the legal document preparer is defined within said code to include "without the supervision of an attorney." However, this essential element “without the supervision of an attorney” must be stated within the Role and Responsibilities of Certificate Holders under ACJA § 7-208 (F) to give the definition its valid purpose. It is vital to preserve the CLDP authority to prepare legal documents without the supervision of an attorney by maintaining said script within the code.

I must insist that the cross-out “without the supervision of an attorney” be discarded as unnecessary, null, and void. No member of the public should have to assume anything. It should not be assumed that certified legal document preparers can work without the supervision of an attorney simply because it is in the definition of the CDLP. It must be stated within the roles and responsibilities of the CDLP.

For the integrity and purpose of the Certified Legal Document Preparer Program and license, and for the general welfare of the public they serve, I ask that this proposal be wholly discarded!

Cindylou R.
AZ Certified Legal Document Preparer